IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-60598
_____________________
DENNIS J. KRYSTEK,
Plaintiff-Appellee,
versus
UNIVERSITY OF SOUTHERN MISSISSIPPI,
Defendant-Appellant.
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_____________________
No. 97-60824
_____________________
DENNIS J. KRYSTEK,
Plaintiff-Appellee,
versus
UNIVERSITY OF SOUTHERN MISSISSIPPI,
Defendant-Appellant.
_________________________________________________________________
Appeals from the United States District Court for the
Southern District of Mississippi
_________________________________________________________________
January 14, 1999
Before JOLLY, BARKSDALE, and BENAVIDES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Dennis J. Krystek was an assistant professor at the University
of Southern Mississippi (“USM”) who was denied tenure because he
failed to publish any scholarly work. He sued USM, alleging
discrimination based on gender, arguing that women were held to a
lesser standard. A jury agreed and found that USM violated Title
VII of the Civil Rights Act of 1964 by denying him tenure. On
appeal, USM argues that (1) there was insufficient evidence to
support the jury’s verdict and (2) Krystek failed to file a timely
complaint with the Equal Employment Opportunity Commission
(“EEOC”). Because we find the evidence insufficient to support a
jury verdict, we decline to address the second issue.
I
At USM, full-time, tenure-track faculty members go through a
five- to seven-year review process before achieving tenure--an
expectation of continuing employment for an indefinite period. The
criteria for making tenure is set out in the Faculty Handbook:
“sustained quality performance in the three university missions of
teaching, research or other creative activity, and service, with
the expectation that the candidate will achieve a high level of
performance in two of these categories.” The second category,
research, essentially is a requirement to publish scholarly work.
Although USM’s College of Liberal Arts Tenure and Promotion Policy
lists a number of other research-related endeavors for which tenure
candidates will receive credit, at the top of the list are
2
“[b]ooks, monographs, chapters, essays, reviews and other scholarly
work published by reputable journals, scholarly presses, and
publishing houses that accept works only after rigorous
professional review.”
During the probationary period for tenure, the candidate
receives annual evaluations, a third year comprehensive review, a
fifth year review that usually coincides with a review for
promotion to associate professor, and, if necessary, a subsequent
sixth or seventh year review. If a candidate is not awarded tenure
by the seventh year, the eighth year is the last year of the
candidate’s employment contract.
Dennis Krystek was hired by the political science department
at USM as a visiting assistant professor in 1988. In 1989, when
his one-year appointment expired, he was hired into a tenure-track
position, as an assistant professor in that department. In 1991,
he postponed his third year review. His evaluation for that year
noted that he needed to devote more time to research. In 1992,
Krystek received his third year review. In the interim, he had
published a short, six-page article in the Louisiana Bar Journal.
Although the article was treated as a promising sign, his
evaluation nevertheless stressed his need to publish articles in
order to receive tenure. In 1993, his evaluation again noted that
he needed to work on publishing and that publishing should be a
priority for him. In 1994, he published another six-page article
3
with the Louisiana Bar Journal. He still had not published a full-
length article or any of the other types of scholarly works listed
in the College Of Liberal Arts Tenure and Promotion Policy.
In October 1994, he applied for tenure and promotion to
associate professor. For a candidate in Krystek’s department, the
application is first reviewed by the candidate’s tenured
departmental faculty, then by the College Advisory Committee, the
Dean of the College, the University Advisory Committee, and jointly
by the Vice President for Academic Affairs and the Vice President
for Research and Planning. Recommendations are made by each party
that reviews the application and those recommendations and the
candidate’s dossier are ultimately reviewed by the President. If
the President believes the candidate merits tenure, he makes that
recommendation to the Board. If the Board agrees, tenure and
promotion are awarded.
In Krystek’s case, the department recommended him for tenure
but not for promotion. The negative recommendation was based
solely upon Krystek’s failure to publish scholarly work. Because
his department was concerned that his application for tenure would
not be treated favorably at the higher levels of review, the
department obtained permission from USM to give Krystek a two-year
extension on his tenure-track so that he could improve his
publication record.
4
Krystek chose not to take advantage of the two-year period to
publish any significant scholarly work. Instead, a year later, in
October of 1995, Krystek resubmitted his application although he
had published only one piece, a two-page co-authored article in a
USM public relations magazine. At that time, in his entire career
at USM, indeed in his entire academic career, Krystek had published
only two works that even he claimed met the requirement of being
published in “reputable journals, scholarly presses, and publishing
houses that accept works only after rigorous professional review.”
Those two articles were both six-page articles in the Louisiana Bar
Journal. One article had twenty footnotes, the other sixteen.
When Krystek reapplied for tenure after only a year, and
without having published a full-length article, the departmental
faculty recommended against both tenure and promotion. Every other
person who subsequently reviewed Krystek’s application voted
against both tenure and promotion with the exception of two of the
five members of the College Advisory Committee, who recommended him
for tenure. The President ultimately denied Krystek both promotion
and tenure.
At some point during the process of Krystek’s review, Krystek
became convinced that the department had an ulterior motive for
imposing publishing requirements on him. Krystek came to believe
that the requirements were being imposed on him in order to deny
him tenure because of his gender. The only potential evidence
5
Krystek had to support his belief was a comment made by the interim
dean of his department, Jerold Waltman. Because this comment
provides the basis for Krystek’s complaint, it is necessary to
determine the evidentiary value of this comment given the situation
in which it was made. We consider this comment in context of all
of the testimony at trial, but viewed in a light most favorable to
Krystek.
Krystek went up for tenure in 1994 and his department voted
for tenure but against promotion. At that point, two of his
supporters were the dean of the department, Ron Marquardt, and the
interim dean, Waltman. Both voted in favor of Krystek for tenure,
though both were concerned about his publishing record. Because of
their concern over Krystek’s publishing record and the result of
the vote, Waltman and Marquardt met with Krystek to discuss ways to
improve his chance for tenure. It was at this meeting that Waltman
and Marquardt suggested that Krystek take a two-year extension to
publish more articles. At the meeting, Marquardt also recommended
that Krystek not teach over the summer but instead devote his time
to writing. Krystek ultimately declined to pursue this suggestion.
Finally, Marquardt and Waltman both offered to proofread any of
Krystek’s work and Marquardt offered to do what he could to assist
Krystek in getting work published.
At this meeting, Krystek complained that another assistant
professor, Kathanne Greene, had gotten tenure.
6
At trial, Krystek testified that Waltman responded, “That’s a
problem. There are different standards for males and females.”
Krystek further stated that Dr. Marquardt said nothing in response
to this comment and that the conversation then turned to another
topic. At trial, Waltman admitted to making a comment to that
effect, but was unclear about whether he made that comment at the
meeting with Marquardt or at some other time. Waltman did remember
Krystek complaining about Greene. He testified that he recalled
trying to redirect the conversation toward what Krystek needed to
do to get tenure. At trial, his explanation for the remark was
that he was expressing a general belief that men and women are
treated differently, not a belief about Krystek’s treatment in this
case.
Marquardt testified that he has no recollection of such a
comment being made in his presence. When Marqaurdt and Waltman
discovered that Krystek had made claims about discrimination on the
basis of gender, both abstained from participating in any further
employment decisions with respect to Krystek.
Based on Waltman’s comment, Krystek concluded that two female
members of the faculty were treated more favorably than he was. He
believes that Gail Lucas, who was not on tenure-track, was not held
to the same requirements that he was. He also believes that
Greene, an assistant professor on tenure-track, was held to a lower
standard regarding her research. Greene had had a full-length
7
article accepted for publication at the time she was granted
tenure, but she had not published any full-length articles while an
assistant professor at USM. Before working at USM, however, Greene
published her doctoral thesis as a book.
II
On March 31, 1995, Krystek filed a charge of discrimination
with the EEOC, alleging that he was denied promotion and tenure
because of his gender. On October 31, 1995, the EEOC issued its
notice of a right to sue. On January 25, 1996, Krystek filed suit
in Mississippi state court, alleging a violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et
seq. USM removed to federal district court. However, it was not
until October 8, 1996, that the President of USM finalized USM’s
decision not to promote or tenure Krystek. The case was tried
before a judge and jury in May of 1997.
At the conclusion of USM’s case, USM moved for a judgment as
a matter of law. The court denied the motion. USM renewed the
motion before the case was submitted to the jury. Again, the court
denied the motion.
After deliberation, the jury returned the following verdict:
Question No. 1: Do you find by a preponderance that
plaintiff’s gender was a motivating factor in the
decision of the defendant to terminate the plaintiff?
Yes.
Question No. 2: Do you find by a preponderance of
the evidence that the defendant, University of Southern
Mississippi, would have made the same employment decision
8
concerning the plaintiff even if unlawful motive, namely
plaintiff’s gender, was not present? Answer: No.
Question No. 3: What amount of money, if any, if
paid now in cash, would adequately compensate the
plaintiff? Answer in dollars and cents for damages, if
any, or answer “None.” Answer: None.
The court ordered USM to reinstate Krystek to the position of
assistant professor and enjoined USM from making employment
decisions regarding Krystek on the basis of his gender. USM moved
for judgment as a matter of law and again the court denied USM’s
motion. USM then filed a timely appeal.
III
The issue before us is whether the district court erred in
refusing to grant USM’s Rule 50 motion for judgment as a matter of
law. We review such a decision under the standards set forth in
Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969), and adopted by
Rhodes v. Guiberson Oil Tools, 75 F.3d 989 (5th Cir. 1996), in the
context of employment discrimination cases:
Under Boeing, “[t]here must be a conflict in substantial
evidence to create a jury question.” Substantial
evidence is defined as “evidence of such quality and
weight that reasonable and fair minded men in the
exercise of impartial judgment might reach different
conclusions.” Consequently, “[a] mere scintilla of
evidence is insufficient to present a question for the
jury.” Even if the evidence is more than a scintilla,
"Boeing assumes that some evidence may exist to support
a position which is yet so overwhelmed by contrary proof
as to yield to a directed verdict."
Id. at 993 (citations omitted).
9
Under Title VII, it is unlawful “for an employer . . . to fail
or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-2(a)(1). Krystek presents two
arguments to support his claim that USM discriminated against him.
First, Krystek argues that Waltman’s comments amount to evidence of
direct discrimination--that the comments in and of themselves
amount to evidence that the decision to deny tenure was motivated
by gender. Second, Krystek argues that the disparate treatment he
received from USM, when compared to that received by Lucas and
Greene, demonstrates that the decision was motivated by gender.
A
Krystek’s first argument can be dismissed as a matter of law.
Under our well established case law, the most that Waltman’s
comment can amount to is a stray remark in the workplace. We
addressed this issue in Brown v. CSC Logic, Inc., 82 F.3d 651 (5th
Cir. 1996), where we noted that, in order for comments in the
workplace to provide sufficient evidence of discrimination, they
must be “1) related [to the protected class of persons of which the
plaintiff is a member]; 2) proximate in time to the terminations;
3) made by an individual with authority over the employment
10
decision at issue; and 4) related to the employment decision at
issue.” Id. at 655.
There is no dispute that Waltman’s comments were made two
years prior to the actual decision to deny Krystek tenure. Nor is
there any dispute over the fact that Waltman did not participate in
the ultimate decision to deny Krystek tenure. Finally, Waltman’s
remarks represent only his perception of how tenure decisions were
being made at that time. There is no evidence in the record that
Waltman actually sought to enforce a different standard for men
rather than women, let alone that he exercised undue influence on
others at USM to do so. Indeed, there is no evidence, despite
adequate discovery, that such a policy or practice was ever applied
at the university, beyond the allegations specifically cited in
Krystek’s individual case. Barring such evidence, Waltman’s
comments must be regarded as stray remarks. In this case, Waltman
was far removed from the final decision to grant tenure--a decision
that involved votes from twenty different members of USM.
Waltman’s comments are not probative evidence that the school’s
decision in Krystek’s case was motivated by gender.
B
Krystek’s second argument--that he received disparate
treatment--requires a closer consideration of the jury’s role as
fact-finder in Title VII cases. In St. Mary’s Honor Center v.
Hicks, 509 U.S. 502 (1993), the Supreme Court addressed the issue
11
of assessing a motion for judgment as a matter of law in the light
of the burden-shifting framework set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). The court stated that: “The
fact finder's disbelief of the reasons put forward by the defendant
(particularly if disbelief is accompanied by a suspicion of
mendacity) may, together with the elements of the prima facie case,
suffice to show intentional discrimination. Thus, rejection of the
defendant's proffered reasons will permit the trier of fact to
infer the ultimate fact of intentional discrimination.” Hicks, 509
U.S. at 511.
In Rhodes, we stated that, in an employment discrimination
case, in order for the plaintiff to prevail, the evidence taken as
a whole must “(1) create[] a fact issue as to whether each of the
employer's stated reasons was what actually motivated the employer
and (2) create[] a reasonable inference that . . . [the plaintiff’s
membership in a protected class] was a determinative factor in the
actions of which plaintiff complains.” Rhodes, 75 F.3d at 994.
The district court must therefore grant a motion for judgment as a
matter of law “if the evidence put forth by the plaintiff to
establish the prima facie case and to rebut the employer's reasons
is not substantial.” Id.
We therefore review the jury’s fact-finding role, and the
judge’s denial of USM’s Rule 50 motion, to determine if substantial
evidence supports Krystek’s claims that he was denied tenure
12
because he was a male and that USM’s stated reason for denying him
tenure is pretextual. When considering the evidence in support of
Krystek’s claims, “we view all the evidence in the light most
favorable to the verdict.” Id. at 995 (citing Boeing, 441 F.2d at
374).
IV
In the case at hand, there is neither substantial evidence to
rebut USM’s stated reason for denying tenure nor substantial
evidence to support a finding that Krystek’s denial of tenure was
motivated by his gender.
In Tanik v. Southern Methodist University, 116 F.3d 775 (5th
Cir. 1997), we recently set forth the necessary elements for
establishing that a denial of tenure amounts to discrimination.
“The plaintiff must show that: (1) he belongs to a protected group,
(2) he was qualified for tenure, and (3) he was denied tenure in
circumstances permitting an inference of discrimination.” Id. at
775. In the context of a Rule 50 motion, if a university can show
that any evidence of gender discrimination, “viewed against the
background of the university’s evidence, is inadequate to produce
an evidentiary conflict strong enough to survive a Rule 50 attack,”
the university is entitled to a verdict in its favor. Travis v.
Board of Regents of the University of Texas System, 122 F.3d 259,
264 (5th Cir. 1997). In this case, the evidence as a whole, viewed
in a light most favorable to the verdict, simply does not establish
13
either that Krystek was qualified for tenure or that Krystek was
denied tenure in circumstances that permit an inference of
discrimination.
The evidence Krystek marshals to his cause is simply not
substantial enough to permit an inference of discrimination.
Krystek argues that he was qualified for tenure, but the evidence
clearly indicates that Krystek failed to meet an established USM
tenure requirement: publishing scholarly work in “reputable
journals, scholarly presses, and publishing houses that accept
works only after rigorous professional review.”
Krystek cannot point to a single tenured faculty member who
has not published scholarly work. Krystek also claims that his two
publications meet the requirement of having published scholarly
works “by reputable journals, scholarly presses, and publishing
houses that accept works only after rigorous professional review.”
However, even in a light most favorable to the verdict, there can
be no argument that a six-page article containing minimal citation
to other scholarly work meets this requirement. In fact, Krystek
admitted in his testimony that the articles were not peer-reviewed
articles.
Krystek could still establish that he was treated differently
from women in his department, thereby calling into question the
validity of the tenure qualification. However, there is no
evidence that Krystek was treated differently from female
14
tenure-track assistant professors. Krystek cannot point to a
single similarly situated assistant professor who was awarded
tenure despite not publishing scholarly work.
Krystek points to the fact that Lucas, a nontenure-track
teacher, was not required to publish. However, this fact is
irrelevant as Lucas was not similarly situated to Krystek. See,
e.g, Nieto v. L&H Packing Co., 108 F.3d 621, 623 (5th Cir. 1997)
(holding that plaintiff’s disparate treatment case fails where
plaintiff compared his treatment to another employee but could not
show that other employee was similarly situated). Lucas was not on
tenure-track and therefore ineligible for the benefits that tenure
confers on faculty members. Furthermore, there is nothing in the
record to indicate that Krystek sought and was denied a position
similar to Lucas’s.
Krystek also points to Greene as an example of an assistant
professor who was not required to publish during her time at USM.
Greene, however, actually had published a book prior to teaching at
USM. Krystek argues that Greene’s book was her dissertation, and
that his dissertation was available in a bound volume also. The
record, however, clearly indicates that although his dissertation
was turned into a bound volume, it was never published by a
publishing house that subjected his work to professional review.
The record is equally clear that Greene’s book was.
15
There can be no substantial evidence permitting an inference
of discrimination when there is no evidence of disparate treatment
and no direct evidence of discrimination. In this case, Krystek
could not produce a female professor who was treated differently
than he was. For the reasons stated above, the plaintiff’s attempt
to characterize Waltman’s remarks as direct evidence of
discrimination also fail. Even when viewed in a light most
favorable to the verdict, the evidence simply does not permit a
reasonable inference that Krystek’s gender was a determinative
factor in USM’s decision to deny tenure.
Krystek was repeatedly encouraged to publish a full-length
article. He was apparently either unwilling or unable to do so.
There is no evidence that his colleagues did not face similar
pressures in their efforts to attain tenured positions nor is there
any evidence that, having failed to meet this requirement, female
assistant professors were nonetheless granted tenure. The evidence
in this case therefore simply does not amount to the kind of
“evidence of such quality and weight that reasonable and fair
minded men in the exercise of impartial judgment might reach
different conclusions.” Boeing, 411 F.2d at 374.
We accord great deference to a jury’s finding of facts.
Nevertheless, when confronted with a case like this one where the
evidence simply does not support the jury’s findings but rather the
position of the losing party, the court must grant judgment as a
16
matter of law in favor of that party. Title VII is designed to
ensure that persons of different gender are treated equally.
Where, as here, an assistant professor has been treated equally and
has been held to the same standards applied to every other tenure-
track faculty member at the university, he may not seek refuge
under Title VII simply because he is unable or unwilling to meet
the minimum requirements for tenure.
V
Our holding in Rhodes requires judgment as a matter of law
when “the evidence put forth by the plaintiff to establish the
prima facie case and to rebut the employer's reasons is not
substantial.” Rhodes, 75 F.3d at 994. The evidence in this case,
even in a light most favorable to the jury verdict, establishes
that Krystek’s denial of tenure was not motivated by his gender but
instead by Krystek’s inability to publish scholarly work. We
therefore hold that the district court erred in denying USM’s Rule
50 motion. Because we conclude that there was insufficient
evidence to support a jury verdict in Krystek’s favor, we decline
to address USM’s argument that Krystek failed to timely file an
EEOC complaint.
For the foregoing reasons, the district court’s judgment is
REVERSED and
REMANDED for entry of judgment for the defendant.
17